How Ming Has Infringed Bellas Copyright - Case Study Example

Running header: Case study Student’s name: Instructor’s name: Subject code: Date of submission 1. Whether the taste of Italy website including the slogan is protected by copyright law In Australia, Copyright is regulated by the copyright act 1968 (Cth)1. According to the act, a number of requirements are to be fulfilled for copyright to be protected. They include; a) The creation has to be a ‘work’ or subject matter other than works’. In this case, the Taste of Italy Website and the slogan is a combination of literary and artistic work. And hence it fulfills this condition as was held in Mirror Newspapers Ltd v Queensland Newspapers Pty Ltd (1982) Qd R 3052. b) The creation has to be original implying that it must originate from the creator’s own skill and effort as opposed to copying from another source as held in Desktop marketing systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 4913. In this case, the website and the slogan fulfill this condition. c) The creation has to be expressed in a material form as the law does not protect an idea as was held in John Fairfax& Sons Pty Ltd v Australian Consolidated Press Ltd (1960) SR (NSW) 4134. In this case, the website and the slogan have already been expressed in a material form and hence this condition is fulfilled. Based on the above requirements therefore, the website including the slogan has been protected by copyright law. 2. How Ming has infringed Bella’s copyright Where the expression has been expressed in a material form and another party copies the expression of that idea without the owner’s permission, the party has infringed on the owner’s copyright and the aggrieved party is entitled to a remedy. In Snow v Eaton centre Ltd (1982) 70 CPR (2nd) 1055, unreasonable modification of one’s work was deemed infringement of copyright. In this case, Ming copied Bella’s website and slogan without her permission and hence he has infringed on her copyright by copying it and modifying it also. 3. The remedies that Bella is seeking The remedies include damages for copying without permission and using it for business purposes. She is also seeking injunction for Ming to be estopped from continued infringement of the copyright to his benefit. Bella could also be seeking for public apology and an order for Ming to remove or reverse the infringement. 4. Ming is the registered holder of the business name ‘Taste of China’. An Asian fast food outlet, The Great Wall, has registered that term as a trade mark. If Ming uses that name to market his restaurant, the Great Wall can take legal action to prevent Ming from doing so. According to the Trade marks act 1995 (Cth)6,the purpose of registering a business name is to enable consumers to identify the owners operating under that name and does not prevent others from using that name to market their product. This is not in itself a defense to an action for infringement of a registered trademark bought by another business. Thus, since Great wall has already registered the name as a trademark and Ming has used it to market his products, Great Wall will be entitled to take legal action to prevent Ming from using the name since Ming has not registered it as a business name and a trademark. 5. Whether there is an enforceable agreement between Bella and Ming In this case, Bella in her offer letter to Ming indicates that if she does not hear from Ming before 5.00 pm on Friday, she will assume the offer has been accepted. Since Ming does not reply the letter and hence Bella treats this as an agreement, this cannot be considered a biding and hence enforceable agreement between Bella and Ming. This is because the law of contract stipulates that for there to be an enforceable agreement between two parties, there has to be offer and acceptance. Though Bella has made an offer to Ming, there has not been any acceptance. The conditions of a valid acceptance indicate that acceptance must be communicated as was held in Powell v Lee7. Furthermore, the offeror (Bella) is estopped from including an acceptance by silence clause as she has done. This was held in Felthouse v Bindley that there can never be acceptance by silence. The fact that Ming did not reply Bella’s letter does not imply that he accepted the offer. As such, there is no enforceable agreement between Bella and Ming. 6. Ming acts on the basis of the advert to purchase the new game but before he can pay for it, he remembers seeing a cheaper game at another store and hence changes his mind. The cashier wants to force him to buy the game in that he is legally committed. Ming refuses to pay and the cashier threatens to take legal action for enforcement. My advice to Ming is that the cashier is wrong for insisting that there is a legally binding agreement between Ming and DD Games. The cashier seems to treat the advert as though it was an offer and hence Ming had accepted to buy. Note that an offer and acceptance have to be present in a legally binding contract. However, the advertisement does not constitute an offer but an invitation to treat. In other words, the cashier ought to have treated the advert as an invitation to interested persons to make an offer. As such, the Cashier ought to know that there was no offer but an invitation to treat. Therefore, there can be no acceptance if there was no offer implying that no contract could have taken place between Ming and DD Games unless Ming had made an offer and the company accepted and consideration provided. Since this is not the case, Ming ought to know that the cashier is incorrect upon insisting that there is a legally binding agreement between Ming and DD Games. Read More